Consent: More Than Just A “Yes”
Seal of Cornell University where Jane Doe made her allegations
Erik Jaeger on Flickr
In the wake of the lawsuit filed against Cornell University by alleged sexual assault victim known as Jane Doe, New York state is reconsidering how universities approach such crimes. NYS education laws define what consent legally means in order to support sexual assault victims on college campuses.
Jane Doe, an anonymous former student at Cornell University, recently sued Cornell and seven men from the Chi Phi fraternity after she was allegedly drugged and raped at a party in October 2024. Skepticism of Cornell holding the men accountable has been expressed in the media.
Due to student privacy laws, Cornell is not able to disclose individual details of the investigation and consequences but has confirmed to the public that the proper measures have been taken to serve justice to Doe and the community.
District Attorney Matthew Van Houten declined to file criminal charges in November 2024 due to Doe’s initial police statement describing consensual sexual acts and voluntary drug use with no mentions of physical force or involuntary intoxication. The case has recently been reopened with new evidence being presented to a grand jury.
Doe’s ability to have the men found guilty of assault by Cornell and not guilty in criminal court when presenting the same evidence lies in a discrepancy between New York State criminal law and education law.
NYS criminal law defines a person as unable to give consent if they are incapacitated or physically helpless, defined as a person being unable to communicate unwillingness to participate in an act. Mental incapacitation is when a person is given drugs or alcohol without their knowledge or consent and reaches a level of intoxication where they can not understand what they are consenting to.
A person can reach a level of intoxication where they may still be conscious and speaking but are nonetheless unable to fully understand the situation any time drugs or alcohol are being used. However, criminal law only recognizes this state as incapacitation if the consumption of the substance was involuntary. If all consumption was voluntary, the person is still considered to be able to give consent. This caveat is called the “voluntary intoxication loophole.”
On the other hand, NYS education law uses the term “affirmative consent.” Affirmative consent means both parties give informed, voluntary consent to the specific sexual activities when they are in agreement to do so and consent can be withdrawn any time during the activity.
Education law recognizes that people who are intoxicated can still give affirmative consent, but people who are incapacitated can not. Education law does not consider if intoxication was voluntary or involuntary when determining if a person was incapacitated. All colleges and universities in New York State are required to follow education law.
Some state officials have expressed a desire to amend the voluntary intoxication loophole.
Senator Nathalia Fernandez and Assemblymember Jeffrey Dinowitz sponsored a bill that would allow for sex crime charges when a victim is incapacitated, even if the intoxication was voluntary. The bill would redirect prosecutors’ focus from how the victim reached their level of intoxication to the victim’s ability to consent. “Voluntary use of alcohol or drugs shouldn’t be treated as consent to sexual assault,” said Dinowitz.
A second bill sponsored by Senator Jamaal Bailey intends to redefine consent in criminal cases. The bill means to change the standard that “unwillingness” means no to "affirmative consent” is the only way to receive a yes, implementing the definition of affirmative consent that is used in education law. Other similar bills have previously passed the state Senate but stalled in the Assembly. Lawmakers are working to pass these bills in the January 2027 legislative session.
Marist University's Title IX Coordinator Kelly Yough offered insight into how the university can support students who have experienced sexual misconduct. Students can report an incident through Marist’s Title IX page or to Yough directly.
The student is then connected with supportive resources on campus including medical care, counseling and accommodations. Students may also choose a combination of any of the three options.
“Depending on the circumstances, a student may choose to access support, pursue a University resolution process,and report to law enforcement,” Yough said.
If the student moves forward with the complaint inside the University, they will be assisted through the process by Yough and a trained investigator. Marist moves through the process impartially and provides support to all parties involved.
“Sexual assault is a serious violation of the University’s Discrimination and Harrassment Policy,” said Yough. While every case is evaluated individually, consequences can be as severe as suspension or expulsion.
Marist follows New York education laws, making affirmative consent the paramount factor. Yough explained that they “look at the totality of the circumstances and the available evidence to assess the person’s capacity to consent.” The other party’s awareness of and ability to understand the level of intoxication of the victim is also considered.
Additionally, consent can be given and taken away at any moment. Consent is not a permanent decision. A student can report an incident at their own pace, but the sooner an incident is reported, the more reliable and accessible the evidence will be.
Marist has an Amnesty Policy for students who report an incident or assist with the investigation. If a student mentions drug or alcohol use at the time of the incident, they will not be reported for violating Drug and Alcohol Policies.
NYS education law and Title IX requires universities to support victims and help them maintain their ability to pursue education. Compelled by Doe’s situation, lawmakers are pushing to redefine criminal consent laws in hopes to support all victims who are seeking justice.
In January, the New York government will vote on whether or not to instate affirmative consent into all New York law. The bill being passed will potentially redefine “the legal standard for consent from ‘no means no’ to ‘yes means yes,” in order to provide justice for victims in both educational and criminal law.